Constitutional Law

Grand jury secrets in Mueller report should be turned over to House, DC Circuit rules

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Former special counsel Robert Mueller (left) and President Donald Trump. Image from Shutterstock.

A federal appeals court ruled Tuesday that the House Judiciary Committee is entitled to see grand jury materials referenced in the report by former special counsel Robert Mueller.

The U.S. Court of Appeals for the D.C. Circuit ruled for the Judiciary Committee in a 2-1 decision Tuesday, report Politico, Law.com and the Washington Post.

The appeals court said the committee had shown a “particularized need” for the materials and was entitled to see them under an exception in the Federal Rules of Criminal Procedure.

The decision allows the committee to see redacted parts of the Mueller report that dealt with grand jury information, as well as underlying grand jury materials. The ruling upholds U.S. District Judge Beryl Howell’s decision from October that ordered the Justice Department to turn over the materials.

“Grand jury records do not become executive branch documents simply because they are housed with the Department of Justice,” Judge Judith Rogers wrote in the majority opinion. “In short, it is the district court, not the executive or the department, that controls access to the grand jury materials at issue here.”

The appeals court said the committee could see the materials under an exception in the federal rules allowing disclosure of grand jury materials “preliminarily to or in connection with a judicial proceeding.”

The court said the exception applies to impeachment proceedings such as an ongoing congressional investigation into President Donald Trump’s conduct as described in the Mueller report.

Mueller’s investigation did not establish that the Trump campaign coordinated with the Russian government to interfere with the election. Mueller chose not to decide whether Trump obstructed justice.

The congressional investigation stemming from the Mueller report continues apart from the probe that led to approval of two articles of impeachment in December, according to a House Judiciary Committee report cited by the appeals court.

Those articles stemmed from Trump’s request that Ukraine investigate Joe Biden’s son and from the president’s orders that witnesses defy subpoenas for information about the matter.

Trump was acquitted on both articles in February.

“The committee’s particularized need for the grand jury materials remains unchanged,” Rogers wrote. “The committee has repeatedly stated that if the grand jury materials reveal new evidence of impeachable offenses, the committee may recommend new articles of impeachment.”

Rogers’ decision was joined by Judge Thomas Griffith. Rogers is an appointee of President Bill Clinton and Griffith is an appointee of President George W. Bush.

The dissenter was Judge Neomi Rao, an appointee of President Donald Trump. She noted the district court authorized disclosure of the grand jury material in October, before articles of impeachment were approved and before Trump’s acquittal.

Rao said she would remand the case for the district court to evaluate whether the committee can continue to demonstrate that its inquiry is preliminary to an impeachment proceeding and that it has a particularized need for disclosure.

Rao also said the House Judiciary Committee had not shown it had standing to seek a court order for one branch of government to give materials to another branch. Because there was no standing, Rao said, she would vacate the part of Howell’s order requiring the Justice Department to hand over the materials.

“The courts play an essential role in saying what the law is, but they are not all-purpose umpires, available to referee any dispute between the other branches,” Rao wrote. “Unless presented with a proper case or controversy, the courts do not advise or review the acts of the coordinate branches or the disputes that may arise between them.”

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